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Brown & Wood LLP
Draft of 10/3/00
$
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MMCA AUTO OWNER TRUST 2000-2
$__________ ______% CLASS A-1 ASSET BACKED NOTES
$__________ ______% CLASS A-2 ASSET BACKED NOTES
$__________ ______% CLASS A-3 ASSET BACKED NOTES
$__________ ______% CLASS A-4 ASSET BACKED NOTES
$__________ ______% CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
UNDERWRITING AGREEMENT
____________, 2000
SALOMON SMITH BARNEY INC.
As Representative of the several Underwriters
388 Greenwich Street
New York, New York 10013
Dear Sirs:
1. Introductory. MMCA Auto Receivables Trust (the "Seller"), a Delaware
business trust established pursuant to the Amended and Restated Trust Agreement,
dated as of October 1, 1999 (the "MART Trust Agreement"), between Mitsubishi
Motors Credit of America, Inc. ("MMCA") and Chase Manhattan Bank Delaware, as
trustee (the "MART Trustee"), proposes, subject to the terms and conditions
stated herein, to cause MMCA Auto Owner Trust 2000-2 (the "Trust") to issue and
sell to you $__________ aggregate principal amount of ______% Class A-1 Asset
Backed Notes (the "Class A-1 Notes"), $__________ aggregate principal amount of
____% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), $__________
aggregate principal amount of ____% Class A-3 Asset Backed Notes (the "Class A-3
Notes"), $__________ aggregate principal amount of ____% Class A-4 Asset Backed
Notes (the "Class A-4 Notes") and $__________ aggregate principal amount of
______% Class B Asset Backed Notes (the "Class B Notes", and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, the "Notes"). The Notes will be issued pursuant to the Indenture, dated
as of ________ 1, 2000 (the "Indenture"), between the Trust and The Bank of
Tokyo-Mitsubishi Trust Company (the "Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $__________ aggregate principal amount of
certificates of beneficial interest (the "Certificates"), each representing an
interest in the property of the Trust (the "Trust Property").
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The Seller will retain the Certificates. The Certificates will be issued
pursuant to the Amended and Restated Trust Agreement, dated as of _____ 1, 2000
(the "Trust Agreement"), between the Seller and Wilmington Trust Company, as
owner trustee (the "Owner Trustee"). The Certificates will be subordinated to
the Notes.
The assets of the Trust will include, among other things, (i) a pool of
motor vehicle retail installment sale contracts secured by new and used
automobiles and sport-utility vehicles to be conveyed to the Trust on the
Closing Date (as such term is defined in Section 3) (the "Initial Receivables")
and from time to time thereafter during the Pre-Funding and Re-Investment Period
(the "Subsequent Receivables") and (ii) with respect to (a) Actuarial
Receivables, certain monies due thereunder on or after the related Cutoff Date
and (b) Simple Interest Receivables, certain monies due or received thereunder
on or after the related Cutoff Date. The Receivables will be sold to the Trust
by the Seller and will be serviced for the Trust by MMCA (in such capacity, the
"Servicer"). Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Sale and Servicing Agreement, dated as of _____ 1, 2000
(the "Sale and Servicing Agreement"), among the Trust, the Seller and the
Servicer or, if not defined therein, in the Indenture, the Trust Agreement or
the Purchase Agreement, dated as of _____ 1, 2000 (the "Purchase Agreement"),
between MMCA, as seller and MART, as purchaser, as the case may be. "Basic
Documents" means (i) the Indenture, (ii) the Trust Agreement, (iii) the First
Tier Initial Assignment, dated as of _____, 2000 (the "First Tier Initial
Assignment"), as executed by MMCA, (iv) any First Tier Subsequent Assignment (as
defined in the Purchase Agreement), (v) the Sale and Servicing Agreement, (vi)
the Purchase Agreement, (vii) the Certificate of Trust, dated _____, 2000 (the
"Certificate of Trust"), between the Seller and the Owner Trustee, (viii) the
Administration Agreement, dated as of _____ 1, 2000 (the "Administration
Agreement"), among MMCA, as administrator (the "Administrator"), the Trust and
the Indenture Trustee, (ix) the Note Depository Agreement, dated as of _____,
2000 (the "Note Depository Agreement"), among the Trust, the Indenture Trustee,
the Administrator and The Depository Trust Company, (x) the Yield Supplement
Agreement, dated as of _____ 1, 2000 (the "Yield Supplement Agreement"), between
the Seller and MMCA and (xi) the Control Agreement, dated as of _____ 1, 2000
(the "Control Agreement"), among the Seller, the Trust, the Servicer, the
Indenture Trustee and The Bank of Tokyo-Mitsubishi Trust Company, as securities
intermediary. "Transfer Date" means, with respect to an Initial Receivable, the
Closing Date, and with respect to a Subsequent Receivable, the related
Subsequent Transfer Date. The Seller hereby agrees with the several Underwriters
named in Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Seller. The Seller represents and
warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-45842) relating to
the Notes, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has
been declared effective under the Securities Act of 1933, as amended (the
"Act"), and is not proposed to be amended or (ii) is proposed to be amended
by amendment or post-effective amendment. If the Seller does not propose to
amend the registration statement and if any post-effective amendment to the
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent post-effective
amendment has been
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declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) under the Act ("Rule 462(c)"). For purposes of this
Agreement, "Effective Time" means (i) if the Seller has advised Salomon
Smith Barney Inc., as representative of the Underwriters (in such capacity,
the "Representative") that it does not propose to amend the registration
statement, the date and time as of which the registration statement, or the
most recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c), or
(ii) if the Seller has advised the Representative that it proposes to file
an amendment or post-effective amendment to the registration statement, the
date and time as of which the registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. "Effective Date" means the date of the
Effective Time. The registration statement, as amended at the Effective
Time, including all information (if any) deemed to be a part of the
registration statement as of the Effective Time pursuant to Rule 430A(b)
("Rule 430A(b)") under the Act, is hereinafter referred to as the
"Registration Statement". The form of prospectus relating to the Notes, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) under the Act ("Rule 424(b)") or, if no such filing is required, as
included in the Registration Statement, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(b) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules and
regulations of the Commission (the "Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) on the date of this Agreement,
the Registration Statement conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b), the Registration Statement and the
Prospectus will conform, in all respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time is subsequent
to the execution and delivery of this Agreement: (i) on the Effective Date,
the Registration Statement and the Prospectus will conform in all respects
to the requirements of the Act and the Rules and Regulations, (ii) neither
of such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) no
additional registration statement related to the Notes pursuant to Rule
462(b) has been or will be filed. The two preceding sentences do not apply
to statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Seller by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(b).
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(c) The Seller has been duly formed and is validly existing as a
business trust under the Delaware Business Trust Act, 12 Del.C. ss.3801 et.
seq. (the "Delaware Trust Act"), with power and authority to own its
properties and conduct its business as described in the Prospectus, and the
Seller is duly qualified to do business and is in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(d) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Seller or the Trust for the consummation of the transactions
contemplated by this Agreement and the Basic Documents in connection with
the issuance of the Notes and the Certificates and the sale by the Seller
of the Notes, except such as have been obtained and made under the Act,
such as may be required under state securities laws and the filing of any
financing statements required to perfect the Seller's, the Trust's and the
Indenture Trustee's interest in the Receivables, which financing statements
will be filed in the appropriate offices within 10 days of the Closing
Date.
(e) The Seller is not in violation of the MART Trust Agreement or
other organizational documents or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any agreement or instrument to which it is a party or by which it or its
properties are bound which could have a material adverse effect on the
transactions contemplated herein or in the Basic Documents. The execution,
delivery and performance of this Agreement and the Basic Documents, and the
issuance of the Notes and the Certificates and the sale by the Seller of
the Notes and compliance with the terms and provisions hereof and thereof
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Seller or any of its properties, or any
agreement or instrument to which the Seller is a party or by which the
Seller is bound or to which any of the properties of the Seller or any such
subsidiary is subject, or the MART Trust Agreement or other organizational
documents of the Seller, and the Seller has full power and authority to
authorize and issue the Notes and the Certificates and to sell the Notes as
contemplated by this Agreement, the Indenture and the Trust Agreement, to
enter into this Agreement and the Basic Documents and to consummate the
transactions contemplated hereby and thereby.
(f) On the Closing Date, the Seller will have directed the Owner
Trustee to authenticate and execute the Certificates and, when delivered
and paid for pursuant to the Sale and Servicing Agreement and the Trust
Agreement, the Certificates will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Trust, entitled to the benefits provided in the Trust
Agreement and enforceable in accordance with their terms.
(g) On the Closing Date, the Seller will have directed the Owner
Trustee to execute the Notes and directed the Indenture Trustee to
authenticate and deliver the Notes and, when authenticated, delivered and
paid for pursuant to the Indenture and this
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Agreement, the Notes will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Trust, entitled to the benefits provided in the Indenture and
enforceable in accordance with its terms.
(h) The Seller possesses adequate certificates, authorities and
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by it and has not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Seller, would individually or in the aggregate have a material adverse
effect on the Seller.
(i) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Seller or any of its
properties that, if determined adversely to the Seller, would individually
or in the aggregate have a material adverse effect on the condition
(financial or other), business or results of operations of the Seller, or
would materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement or the other Basic Documents to which
it is a party, or which are otherwise material in the context of the
issuance and sale of the Notes or the issuance of the Certificates or the
sale of the Notes; and no such actions, suits or proceedings are threatened
or, to the Seller's knowledge, contemplated.
(j) As of the Closing Date, the representations and warranties of the
Seller contained in the Basic Documents will be true and correct.
(k) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Seller, whether or not arising in the ordinary course of
business and (ii) there have been no transactions entered into by the
Seller, other than those in the ordinary course of business, which are
material with respect to the Seller.
(l) Each of the Basic Documents to which the Seller is a party has
been duly authorized by the Seller and, when duly executed and delivered by
the Seller and the other parties thereto, will constitute a valid and
binding agreement of the Seller, enforceable against the Seller in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(m) This Agreement has been duly authorized, executed and delivered by
the Seller.
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(n) The Seller has authorized the conveyance of the Receivables to the
Trust, and, as of the Closing Date, the Seller has directed the Trust to
execute and issue the Notes and the Certificates and to sell the Notes.
(o) The Seller's assignment and delivery of the Receivables to the
Trust on the related Transfer Dates will vest in the Trust all of the
Seller's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(p) The Trust's assignment of the Receivables to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance except for any tax lien,
mechanics' lien or other lien or encumbrance that attaches by operation of
law.
(q) The Computer Tape of the Receivables created as of the related
Transfer Dates and made available to the Representative by the Servicer are
or will be, as applicable, complete and accurate as of the date thereof and
include or will include, as applicable, an identifying description of the
Receivables that are listed on Schedule A to the Sale and Servicing
Agreement.
(r) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the Basic
Documents, the Notes and the Certificates and any other agreements
contemplated herein or therein shall have been paid or will be paid by the
Seller at or prior to the Closing Date to the extent then due.
(s) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms hereof
and thereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or
assets of the Seller pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument under which the Seller is a debtor or
guarantor.
(t) The Seller is not and, after giving effect to the issuance of the
Notes and Certificates and the offering and sale of the Notes and the
application of the proceeds thereof as described in the Prospectus, will
not be required to be registered as an "investment company" as defined in
the Investment Company Act of 1940 (the "Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Seller, the Notes at a purchase price of, in the case of the (i) Class
A-1 Notes, _____% of the principal amount thereof; (ii) Class A-2 Notes, _____%
of the principal amount
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thereof; (iii) Class A-3 Notes, _____% of the principal amount thereof; (iv)
Class A-4 Notes, _____% of the principal amount thereof; and (v) Class B Notes,
_____% of the principal amount thereof, the respective principal amounts of each
Class of Notes set forth opposite the names of the Underwriters in Schedule A
hereto.
The Seller will deliver against payment of the purchase price therefor, the
Notes of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Seller at a bank acceptable to the Representative, at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York
10036 at 10:00 a.m., New York time, on _____, 2000, or at such other time not
later than seven full business days thereafter as the Representative and the
Seller determine, such time being herein referred to as the "Closing Date",
against delivery to the Indenture Trustee as custodian for DTC of the Global
Notes representing all of the Notes. The Global Notes will be made available for
checking at the above office of Skadden, Arps, Slate, Meagher & Flom LLP at
least 24 hours prior to the Closing Date.
The Seller will deliver the Certificates to the above office of Skadden,
Arps, Slate, Meagher & Flom LLP on the Closing Date. The certificate for the
Certificates so to be delivered will be in definitive form, in authorized
denominations and registered in the name of the Seller and will be made
available for checking at the above office of Skadden, Arps, Slate, Meagher &
Flom LLP at least 24 hours prior to the Closing Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the parties hereto have agreed that the Closing
Date will be not later than _____, 2000, unless otherwise agreed to as described
above.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
5. Certain Agreements of the Seller. The Seller agrees with the several
Underwriters:
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Seller will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and
if consented to by the Representative, subparagraph (4)) of Rule 424(b) not
later than the earlier of (i) the second business day following the
execution and delivery of this Agreement or (ii) the fifteenth business day
after the Effective Date. The Seller will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
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(b) The Seller will advise the Representative promptly of any proposal
to amend or supplement the registration statement as filed or the related
prospectus, or the Registration Statement or the Prospectus, and will not
effect such amendment or supplementation without the Representative's
consent; and the Seller will also advise the Representative promptly of the
effectiveness of the Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of the Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Seller will promptly notify the
Representative of such event and will promptly prepare and file with the
Commission (subject to the Representative's prior review pursuant to
Section 5(b)), at its own expense, an amendment or supplement which will
correct such statement or omission, or an amendment which will effect such
compliance. Neither the Representative's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Seller will cause the Trust to make generally
available to the Noteholders an earnings statement of the Trust covering a
period of at least 12 months beginning after the Effective Date which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 90th day after the end of
the Trust's fourth fiscal quarter following the fiscal quarter that
includes such Effective Date.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as delivery of
a prospectus relating to the Notes is required under the Act in connection
with sales by any Underwriter or dealer, the Prospectus and all amendments
and supplements to such documents, in each case as soon as available and in
such quantities as the Representative requests. The Prospectus shall be so
furnished on or prior to 3:00 p.m., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time. All other such documents shall be so furnished as soon as
available. The Seller will pay the expenses of printing and distributing to
the Underwriters all such documents.
(f) The Seller will arrange for the qualification of the Notes for
offering and sale and the determination of their eligibility for investment
under the laws of such
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jurisdictions as the Representative designates and will continue such
qualifications in effect so long as required for the distribution of the
Notes.
(g) For a period from the date of this Agreement until the retirement
of the Notes (i) the Seller will furnish to the Representative and, upon
request, to each of the other Underwriters, copies of each certificate and
the annual statements of compliance delivered to the Indenture Trustee
pursuant to Section 3.9 of the Indenture and Sections 3.9 and 3.10 of the
Sale and Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Indenture Trustee pursuant
to Section 3.11 of the Sale and Servicing Agreement, by first-class mail as
soon as practicable after such statements and reports are furnished to the
Indenture Trustee, and (ii) such other forms of periodic certificates or
reports as may be delivered to the Indenture Trustee, the Owner Trustee or
the Noteholders under the Indenture, the Trust Agreement, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Seller will furnish to the
Representative by first-class mail as soon as practicable, (i) all
documents distributed, or caused to be distributed, by the Seller to the
Noteholders, (ii) all documents filed, or caused to be filed, by the Seller
with the Commission pursuant to the Exchange Act, any order of the
Commission thereunder and (iii) such other information in the possession of
the Seller concerning the Trust as the Representative from time to time may
reasonably request.
(i) The Seller will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
(if and to the extent incurred by them) for any filing fees and other
expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Notes for sale and determination of
their eligibility for investment under the laws of such jurisdictions as
the Representative designates and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating
of the Notes, for any travel expenses of the Seller's officers and
employees and any other expenses of the Seller in connection with attending
or hosting meetings with prospective purchasers of the Notes and for
expenses incurred in distributing the preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided with respect to
the Notes by Moody's Investors Service, Inc. ("Moody's") and Standard &
Poor's, a Division of The McGraw-Hill Companies, Inc. ("Standard & Poor's"
and, together with Moody's, the "Rating Agencies") is conditional upon the
furnishing of documents or the taking of any other action by the Seller,
the Seller shall furnish such documents and take any such other action.
(k) On or before the related Transfer Date, the Seller shall cause the
computer records of the Seller and MMCA relating to the Receivables to be
marked to show the Trust's absolute ownership of the Receivables, and from
and after the related Transfer Date neither the Seller nor MMCA shall take
any action inconsistent with the Trust's
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ownership of such Receivables, other than as permitted by the Sale and
Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Seller herein, to the accuracy of the statements of the Seller's
officers made pursuant to the provisions hereof, to the performance by the
Seller of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representative shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Ernst & Young LLP, in form and
substance satisfactory to the Representative and counsel for the
Underwriters, confirming that they are independent public accountants
within the meaning of the Act and the applicable Rules and Regulations and
stating in effect that (i) they have performed certain specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Trust, MMCA and the Seller) set forth in the
Registration Statement and the Prospectus (and any supplements thereto),
agrees with the accounting records of the Trust, MMCA and the Seller,
excluding any questions of legal interpretation, and (ii) they have
performed certain specified procedures with respect to the Receivables.
For purposes of this subsection, (i) if the Effective Time is
subsequent to the execution and delivery of this Agreement, "Registration
Statement" shall mean the registration statement as proposed to be amended
by the amendment or post-effective amendment to be filed shortly prior to
the Effective Time, including all information (if any) deemed to be a part
of the initial registration statement as of such time pursuant to Rule
430A(b), and (ii) "Prospectus" shall mean the prospectus included in the
Registration Statement. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this subsection.
(b) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than
10:00 p.m., New York time, on the date of this Agreement or such later date
as shall have been consented to by the Representative. If the Effective
Time is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a). Prior to the Closing Date, no stop
order or other order of the Commission suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Seller or
the Representative, shall be contemplated by the Commission.
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(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations or retail motor vehicle
financing business or light-duty truck financing business of the Trust, the
Seller, Mitsubishi Motor Sales of America, Inc. ("MMSA"), Mitsubishi Motors
Corporation ("MMC") or MMCA which, in the judgment of a majority in
interest of the Underwriters (including the Representative), materially
impairs the investment quality of each Class of the Notes or makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for each Class of the Notes; (ii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange; (iii) any banking moratorium declared by Federal, California or
New York authorities; or (iv) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any substantial national or international calamity or
emergency if, in the judgement of a majority in interest of the
Underwriters (including the Representative), the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for each Class of the Notes.
(d) The Representative shall have received an opinion of (A) J. Sean
Plater, Esq., Director of Legal Affairs of the Seller, (B) Skadden, Arps,
Slate, Meagher & Flom LLP, special New York counsel to the Seller, and (C)
Richards, Layton & Finger, P.A., special Delaware counsel to the Seller, in
each case dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, and, in the aggregate
to the effect that:
(i) the Seller has been duly formed and is validly existing as a
business trust under the Delaware Trust Act, with full power and
authority to own its properties and conduct its business as described
in the Prospectus; the Seller is duly qualified to do business and is
in good standing in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such
qualification; and the Seller has full power and authority under the
Delaware Trust Act and under the MART Trust Agreement to enter into
and perform its obligations under this Agreement and the Basic
Documents to which it is a party, to direct the Indenture Trustee and
the Owner Trustee to execute the Notes and the Certificates,
respectively, to consummate the transactions contemplated hereby and
thereby, and had at all times, and now has, the power, authority and
legal right to acquire, own and sell the Receivables;
(ii) MMCA has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; MMCA is duly qualified to
do business and is in good standing in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification; and MMCA has full power and authority to enter
into and perform its obligations under this Agreement, the Note
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Indemnification Agreement dated _____, 2000 (the "Note Indemnification
Agreement") between MMCA and the Representative, acting on behalf of
itself and as Representative of the several Underwriters, and the
Basic Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby, and had at all times,
and now has, the power, authority and legal right to acquire, own,
sell and service the Receivables;
(iii) each of the direction by the Seller to the Owner Trustee to
execute the Notes and the direction by the Seller to the Indenture
Trustee to authenticate and deliver the Notes has been duly authorized
by the Seller and, when the Notes have been duly executed by the Owner
Trustee and, when authenticated and delivered by the Indenture Trustee
in accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, the Notes
will be duly and validly issued and outstanding and will be entitled
to the benefits of the Indenture;
(iv) the direction by the Seller to the Owner Trustee to
authenticate and execute the Certificates has been duly authorized by
the Seller and, when the Certificates have been duly executed,
authenticated and delivered by the Owner Trustee in accordance with
the terms of the Trust Agreement and the Certificates have been
delivered to and paid for by the Seller pursuant to the Sale and
Servicing Agreement and the Trust Agreement, the Certificates will be
duly and validly issued and outstanding and will be entitled to the
benefits of the Trust Agreement;
(v) the Note Indemnification Agreement and each Basic Document to
which MMCA is a party has been duly authorized, executed and delivered
by MMCA;
(vi) no consent, approval, authorization or order of, or filing
with any governmental agency or body or any court is required for the
execution, delivery and performance by the Seller of this Agreement
and the Basic Documents to which it is a party, for the execution,
delivery and performance by MMCA of the Note Indemnification Agreement
and the Basic Documents to which it is a party or for the consummation
of the transactions contemplated by this Agreement, the Basic
Documents or the Note Indemnification Agreement, except for (i) the
filing of Uniform Commercial Code financing statements in California
with respect to the transfer of the Receivables to the Seller pursuant
to the Purchase Agreement (the "Seller Financing Statements") and the
transfer of the Trust Property to the Trust pursuant to the Sale and
Servicing Agreement (the "Trust Financing Statements") and the filing
of a Uniform Commercial Code financing statement in Delaware with
respect to the grant by the Trust of a security interest in the Trust
Property to the Indenture Trustee pursuant to the Indenture (the
"Indenture Financing Statements"), which financing statements will be
filed in the appropriate offices within ten days of the Closing Date;
(ii) such as have been
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obtained and made under the Act; and (iii) such as may be required
under state securities laws;
(vii) the execution, delivery and performance of this Agreement
and the Basic Documents by the Seller, the execution, delivery and
performance of the Note Indemnification Agreement and the Basic
Documents by MMCA and the consummation of any other of the
transactions contemplated herein, in either Note Indemnification
Agreement or the Basic Documents will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of MMCA or the Seller
pursuant to the terms of the Certificate of Incorporation or the
By-Laws of MMCA or the documents of organization of the Seller, or any
statute, rule, regulation or order of any governmental agency or body,
or any court having jurisdiction over MMCA or the Seller or their
respective properties, or any agreement or instrument known to such
counsel after due investigation to which MMCA or the Seller is a party
or by which MMCA or the Seller or any of their respective properties
is bound;
(viii) such counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its effective
date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of its issue date or as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and the Prospectus of
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required to
be shown; and such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or
the Prospectus which are not described as required or of any contracts
or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus;
(ix) there are no actions, proceedings or investigations pending
to which the Seller or MMCA is a party or, to the best knowledge of
such counsel, after due inquiry, threatened before any court,
administrative agency or other tribunal having jurisdiction over MMCA
or the Seller, (i) that are required to be disclosed in the
Registration Statement, (ii) asserting the invalidity of this
Agreement, the Note Indemnification Agreement, any Basic Document, the
Notes or the Certificates, (iii) seeking to prevent the issuance of
the Notes or the Certificates or the consummation of any of the
transactions contemplated by this
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Agreement or the Basic Documents, (iv) which might materially and
adversely affect the performance by the Seller or MMCA of its
obligations under, or the validity or enforceability of, this
Agreement, the Note Indemnification Agreement, any Basic Document,
the Notes or the Certificates or (v) seeking adversely to affect the
federal income tax attributes of the Notes as described in the
Prospectus under the heading "FEDERAL INCOME TAX CONSEQUENCES";
(x) the statements in the Registration Statement under the
heading "SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the
extent they constitute statements of matters of law or legal
conclusions with respect thereto, are correct in all material
respects;
(xi) each of MMCA and the Seller has obtained all necessary
licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such license or approval would render any
Receivable unenforceable by MMCA, the Seller, the Trust, the Owner
Trustee or the Indenture Trustee;
(xii) this Agreement and each Basic Document to which the Seller
is a party has been duly authorized, executed and delivered by the
Seller;
(xiii) such counsel is familiar with MMCA's standard operating
procedures relating to MMCA's acquisition of a perfected first
priority security interest in the vehicles financed by MMCA pursuant
to retail installment sale contracts in the ordinary course of MMCA's
business; assuming that MMCA's standard procedures are followed with
respect to the perfection of security interests in the Financed
Vehicles (and such counsel has no reason to believe that MMCA has not
or will not continue to follow its standard procedures in connection
with the perfection of security interests in the Financed Vehicles),
MMCA has acquired or will acquire a perfected first priority security
interest in the Financed Vehicles;
(xiv) the Receivables are chattel paper as defined in the UCC;
and
(xv) immediately prior to the sale of the Receivables by MMCA to
the Seller pursuant to the Purchase Agreement and the First Tier
Initial Assignment, MMCA was the sole owner of all right, title and
interest in, to and under the Receivables and the other property to be
transferred by it to the Seller; immediately prior to the sale of the
Receivables by the Seller to the Trust pursuant to the Sale and
Servicing Agreement, the Seller was the sole owner of all right, title
and interest in, to and under the Receivables and the other property
to be sold by it to the Trust.
(e) The Representative shall have received an opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Seller, dated
the Closing Date, and
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satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) each Initial Receivable is a motor vehicle retail installment
sales contract that constitutes "chattel paper" as defined in Section
9-105 of the UCC in effect in the States of New York, Delaware and
California;
(ii) the provisions of the Sale and Servicing Agreement are
effective to create, in favor of the Owner Trustee, a valid security
interest (as such term is defined in Section 1-201 of the New York
UCC) in the Seller's rights in the Initial Receivables and proceeds
thereof, which security interest, if characterized as a transfer for
security, will secure payment of the Notes;
(iii) the Trust Financing Statement is in appropriate form for
filing in the relevant filing office under the New York UCC, upon the
filing of the Trust Financing Statement in the relevant filing office,
the security interest in favor of the Owner Trustee in the Initial
Receivables and proceeds thereof will be perfected, and no other
security interest of any other creditor of the Seller will be equal or
prior to the security interest of the Owner Trustee in the Initial
Receivables and proceeds thereof;
(iv) the provisions of the Indenture are effective to create in
favor of the Indenture Trustee, a valid security interest (as such
term is defined in Section 1-201 of the Relevant UCC) in the Initial
Receivables and proceeds thereof to secure payment of the Notes;
(v) assuming that each of the direction by the Seller to the
Owner Trustee to execute the Notes and the direction by the Seller to
the Indenture Trustee to authenticate and deliver the Notes has been
duly authorized by the Seller, when the Notes have been duly executed
by the Owner Trustee and authenticated and delivered by the Indenture
Trustee in accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, the Notes
will be duly and validly issued and outstanding and will be entitled
to the benefits of the Indenture;
(vi) assuming that the direction by the Seller to the Owner
Trustee to execute, authenticate and deliver the Certificates has been
duly authorized by the Seller, when the Certificates have been duly
executed, authenticated and delivered by the Owner Trustee in
accordance with the terms of the Trust Agreement and the Certificates
have been delivered to and paid for by the Seller pursuant to the Sale
and Servicing Agreement and the Trust Agreement, the Certificates will
be duly and validly issued and outstanding and will be entitled to the
benefits of the Trust Agreement;
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(vii) the statements in the Prospectus under the caption "SOME
IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the extent they
constitute matters of law or legal conclusions, are correct in all
material respects;
(viii) the Trust Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act");
(ix) the Indenture has been duly qualified under the Trust
Indenture Act;
(x) no authorization, approval or consent of any court or
governmental agency or authority is necessary under the Federal law of
the United States or the laws of the State of New York in connection
with the execution, delivery and performance by the Seller of this
Agreement and the Basic Documents to which it is a party, the
execution, delivery and performance by MMCA of the Note
Indemnification Agreement and the Basic Documents to which it is a
party or for the consummation of the transactions contemplated by this
Agreement, the Note Indemnification Agreement or the Basic Documents,
except such as may be required under state securities laws and such as
have been obtained and made under the Act;
(xi) the Registration Statement was declared effective under the
Act as of the date specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or was
included in the Registration Statement, and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereof, as of their
respective effective or issue dates, complies as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that any part of
the Registration Statement or any amendment thereto, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of its issue
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and to the best knowledge
of such counsel, such counsel does not know of any contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in the
Registration Statement or the Prospectus;
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(xii) each of the Certificate of Trust, the Trust Agreement, the
Sale and Servicing Agreement, the Administration Agreement, the Yield
Supplement Agreement, the Purchase Agreement, the Control Agreement
and the First Tier Initial Assignment constitutes the legal, valid and
binding agreement of the Seller and MMCA, in each case as to those
documents to which it is a party, enforceable against the Seller and
MMCA in accordance with their terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally from time to time
in effect, and subject, as to enforceability, to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law) except, as applicable, that such
counsel need not express an opinion with respect to indemnification or
contribution provisions which may be deemed to be in violation of the
public policy underlying any law or regulation;
(xiii) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, the Indenture constitutes the
legal, valid and binding agreement of the Trust, enforceable against
the Trust in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law)
except, as applicable, that such counsel need not express an opinion
with respect to indemnification or contribution provisions which may
be deemed to be in violation of the public policy underlying any law
or regulation;
(xiv) neither the Trust nor the Seller is and, after giving
effect to the issuance of the Notes and the Certificates and the sale
of the Notes and the application of the proceeds thereof, as described
in the Prospectus, neither the Trust nor the Seller will be, an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(xv) the Notes, the Certificates, the Purchase Agreement, the
Administration Agreement, the First Tier Initial Assignment, the Sale
and Servicing Agreement, the Yield Supplement Agreement, the Trust
Agreement, this Agreement, and the Indenture each conform in all
material respects with the descriptions thereof contained in the
Registration Statement and the Prospectus; and
(xvi) the Trust Agreement is the legal, valid and binding
agreement of the Seller, enforceable against the Seller, in accordance
with its terms under the law of the State of Delaware.
(f) The Representative shall have received an opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, special tax counsel for the Seller, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters,
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to the effect for federal income tax purposes (i) the Notes will be
characterized as indebtedness of the Trust, (ii) the Trust will not be
classified as an association (or publicly traded partnership) taxable as
a corporation and (iii) the statements set forth in the Prospectus under
the headings "SUMMARY OF TERMS--ERISA Considerations", "SUMMARY OF
TERMS-Eligibility of Notes for Purchase by Money Market Funds", "SOME
IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", "ERISA CONSIDERATIONS",
"SUMMARY OF TERMS--Tax Status", "FEDERAL INCOME TAX CONSEQUENCES", "LEGAL
INVESTMENT" and "TERMS OF THE NOTES--Terms of the Indenture" (last sentence
of the last paragraph under "Events of Default Under the Indenture" and
last sentence of the first paragraph under "Remedies Following an Event of
Default under the Indenture" only) to the extent such statements constitute
matters of law or legal conclusions with respect thereto, are correct in
all material respects.
(g) The Representative shall have received an opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, special tax counsel for the Seller, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that (i) for
California state franchise and income tax purposes (A) the Trust will not
be taxable as a corporation and (B) the Notes will be treated as
indebtedness, (ii) the Notes will be characterized as indebtedness for
Delaware state income tax purposes, (iii) the Trust will not be subject to
Delaware state franchise or income tax as a separate entity and (iv) the
statements set forth in the Prospectus under the headings "SUMMARY OF
TERMS-Tax Status" and "STATE TAX CONSEQUENCES", to the extent such
statements constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(h) The Representative shall have received from Brown & Wood LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative
may require, and the Seller shall have furnished to such counsel such
documents as it may request for the purpose of enabling it to pass upon
such matters.
(i) The Representative shall have received a certificate, dated the
Closing Date, of the Chairman of the Board, the President or any Vice
President and a principal financial or accounting officer, or equivalent
officer or officers, of each of the Seller and MMCA in which such officers,
to the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Seller in this Agreement
are true and correct; the representations of MMCA in the Note
Indemnification Agreement are true and correct; the Seller or MMCA, as
applicable, has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date; the representations and warranties of the Seller or MMCA, as
applicable, in the Basic Documents are true and correct as of the dates
specified in such agreements; the Seller or MMCA, as applicable, has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the Closing
Date; no stop order suspending the effectiveness of the Registration
Statement
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has been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission; and, subsequent to the date of the
Prospectus, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of operations of
the Seller or MMCA or their respective businesses except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(j) The Representative shall have received an opinion of Pryor,
Cashman, Sherman & Flynn, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that:
(i) the Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of New
York;
(ii) the Indenture Trustee has the full corporate trust power to
accept the office of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement;
(iii) the execution and delivery of the Indenture and the
Administration Agreement and the acceptance of the Sale and Servicing
Agreement and the performance by the Indenture Trustee of its
obligations under the Indenture, the Sale and Servicing Agreement and
the Administration Agreement have been duly authorized by all
necessary corporate action of the Indenture Trustee and each has been
duly executed and delivered on behalf of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing Agreement and the
Administration Agreement constitute valid and binding obligations of
the Indenture Trustee enforceable against the Indenture Trustee in
accordance with their terms under the laws of the State of New York
and the federal law of the United States;
(v) the execution and delivery by the Indenture Trustee of the
Indenture and the Administration Agreement and the acceptance of the
Sale and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any New York or
United States federal governmental authority, other than the
qualification of the Indenture Trustee under the Trust Indenture Act;
(vi) each of the Notes has been duly authenticated and delivered
by the Indenture Trustee;
(vii) neither the consummation by the Indenture Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture or
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the Administration Agreement nor the fulfillment of the terms thereof
by the Indenture Trustee will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter,
By-laws or other organizational documents of the Indenture Trustee
or the terms of any indenture or other agreement or instrument known
to such counsel and to which the Indenture Trustee or any of its
subsidiaries is a party or is bound or any judgment, order or decree
known to such counsel to be applicable to the Indenture Trustee or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Indenture Trustee or any of its subsidiaries;
(viii) to such counsel's knowledge there is no action, suit or
proceeding pending or threatened against the Indenture Trustee (as
trustee under the Indenture or in its individual capacity) before or
by any governmental authority that if adversely decided, would
materially adversely affect the ability of the Indenture Trustee to
perform its obligations under the Indenture, the Sale and Servicing
Agreement or the Administration Agreement; and
(ix) the execution, delivery and performance by the Indenture
Trustee of the Sale and Servicing Agreement, the Indenture and the
Administration Agreement will not subject any of the property or
assets of the Trust or any portion thereof, to any lien created by or
arising with respect to the Indenture Trustee that are unrelated to
the transactions contemplated in such Agreements.
(k) The Representative shall have received an opinion of Richards,
Layton & Finger, P.A., counsel to the Owner Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that:
(i) the Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the State of Delaware;
(ii) the Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement and, on behalf of the Trust, under the other Basic Documents
to which it is a party and has duly authorized, executed and delivered
such Basic Documents and such Basic Documents constitute the legal,
valid and binding agreement of the Owner Trustee, enforceable in
accordance with their terms, except that certain of such obligations
may be enforceable solely against the Trust Property (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting creditors'
rights generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at
law);
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(iii) the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee as owner trustee and authenticating
agent; each of the Notes has been duly executed by the Owner Trustee,
on behalf of the Trust;
(iv) the execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, of the other Basic Documents to
which it is a party and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in a breach or
violation of, or constitute a default under the Articles of
Association or By-laws of the Owner Trustee; and
(v) the execution, delivery and performance by the Owner Trustee
of the Trust Agreement and, on behalf of the Trust, of the other Basic
Documents to which it is a party do not require any consent, approval
or authorization of, or any registration or filing with, any Delaware
or United States federal governmental authority having jurisdiction
over the trust power of the owner Trustee, other than those consents,
approvals or authorizations as have been obtained and the filing of
the Certificate of Trust with the Secretary of State of the State of
Delaware.
(l) The Representative shall have received an opinion of Richards,
Layton & Finger, P.A., special Delaware counsel to the Trust, dated the
Closing Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing as a
business trust under the Delaware Trust Act;
(ii) the Trust has the power and authority under the Delaware
Trust Act and the Trust Agreement, and the Trust Agreement authorizes
the Owner Trustee, to execute, deliver and perform its obligations
under the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Note Depository Agreement, the Notes and
the Certificates;
(iii) to the extent that Article 9 of the UCC as in effect in the
State of Delaware (the "Delaware UCC") is applicable (without regard
to conflict of laws principles), and assuming that the security
interest created by the Indenture in the Receivables has been duly
created and has attached, upon the filing of the Indenture Financing
Statement with the Secretary of State of Delaware the Indenture
Trustee will have a perfected security interest in the Trust's rights
in such Receivables and the proceeds thereof, and such security
interest will be prior to any other security interest granted by the
Trust that is perfected solely by the filing of financing statements
under the Delaware UCC, excluding purchase money security interests
under ss.9-312(4) of the Delaware UCC and temporarily perfected
security interests in proceeds under ss.9-306(3) of the Delaware UCC;
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(iv) no re-filing or other action is necessary under the Delaware
UCC in order to maintain the perfection of such security interest
except for the filing of continuation statements at five year
intervals;
(v) assuming that the Notes have been duly executed by the Owner
Trustee on behalf of the Trust, and assuming that the Notes have been
duly authenticated by the Indenture Trustee, when the Notes have been
delivered in accordance with the Indenture, the Notes will be validly
issued and entitled to the benefits of the Indenture;
(vi) assuming that the Certificates have been duly authorized,
executed and authenticated by the Owner Trustee on behalf of the
Trust, when the Certificates have been issued and delivered in
accordance with the instructions of the Seller, the Certificates will
be validly issued and entitled to the benefits of the Trust Agreement;
and
(vii) under 12 Del. C. ss.3805(b), no creditor of any
Certificateholder (including creditors of the Seller in its capacity
as Certificateholder) shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(m) The Representative shall have received an opinion of Pryor Cashman
Sherman & Flynn LLP, counsel to the MART Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that:
(i) the MART Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the State of Delaware;
(ii) the MART Trustee has full corporate trust power and
authority to enter into and perform its obligations under the MART
Trust Agreement and has duly authorized, executed and delivered the
MART Trust Agreement and the MART Trust Agreement constitutes the
legal, valid and binding agreement of the MART Trustee, enforceable in
accordance with its terms;
(iii) the execution and delivery by the MART Trustee of the MART
Trust Agreement and the performance by the MART Trustee of its
obligations thereunder do not conflict with, result in a breach or
violation of, or constitute a default under the Articles of
Association or By-laws of the MART Trustee; and
(iv) the execution, delivery and performance by the MART Trustee
of the MART Trust Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any Delaware or
United States federal governmental authority having jurisdiction over
the trust power of the MART
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<PAGE>
Trustee, other than those consents, approvals or authorizations as
have been obtained.
(n) The Representative shall have received an opinion of Skadden Arps,
Slate, Meagher & Flom LLP, counsel to the Seller, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, (i) with respect to the characterization of the
transfer of the Receivables by MMCA to the Seller and from the Seller to
the Trust and (ii) to the effect that should MMCA become the debtor in a
case under the Bankruptcy Code, and the Seller would not otherwise properly
be a debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising reasonable judgment after full
consideration of all relevant factors, should not order, over the objection
of the Certificateholders or the Noteholders, the substantive consolidation
of the assets and liabilities of the Seller with those of MMCA and such
opinion shall be in substantially the form previously discussed with the
Representative and counsel for the Underwriters and in any event
satisfactory in form and in substance to the Representative and counsel for
the Underwriters.
(o) The Representative shall have received evidence satisfactory to it
and its counsel that, within ten days of the Closing Date, UCC-1 financing
statements have been or are being filed in the office of the Secretary of
State of the state of (i) California reflecting the transfer of the
interest of MMCA in the Receivables and the proceeds thereof to the Seller
and the transfer of the interest of the Seller in the Receivables and the
proceeds thereof to the Trust and (ii) Delaware reflecting the grant of the
security interest by the Trust in the Receivables and the proceeds thereof
to the Indenture Trustee.
(p) The Representative shall have received an opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Seller, dated the
Closing Date and satisfactory in form and substance to the Representative
and the counsel for the Underwriters to the effect that (i) the provisions
of the Indenture are effective to create a valid security interest in favor
of the Indenture Trustee, to secure payment of the Notes, in all
"securities entitlements" (as defined in Section 8-102(a)(17) of the New
York UCC) with respect to "financial assets" (as defined in Section
8-102(a)(9) of the New York UCC) now or hereafter credited to the Reserve
Account (such securities entitlements, the "Securities Entitlements"), (ii)
the provisions of the control agreement for purposes of Article 8 of the
New York UCC are effective to perfect the security interest of the
Indenture Trustee in the Securities Entitlements and (iii) no security
interest of any other creditor of the Trust will be prior to the security
interest of the Indenture Trustee in such Securities Entitlements.
(q) The Class A-1 Notes shall have been rated at least "P-1" and
"A-1+" by Moody's and Standard & Poor's, respectively. The Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes shall have been rated "Aaa" and "AAA"
by Moody's and Standard & Poor's, respectively, and the Class B Notes shall
have been rated at least "A2" and "A" by Moody's and Standard & Poor's,
respectively.
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<PAGE>
(r) The Representative shall have received a letter, dated the Closing
Date, of Ernst & Young LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for purposes of this subsection.
(s) On or prior to the Closing Date, the Certificates shall have been
issued to the Seller.
(t) The Representative shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP and each other counsel for the Seller, a letter dated
the Closing Date to the effect that the Underwriters may rely upon each
opinion rendered by such counsel to either Standard & Poor's or Moody's in
connection with the rating of any Class of the Notes, as if each such
opinion were addressed to the Underwriters.
(u) The Representative shall receive from Skadden, Arps, Slate,
Meagher & Flom LLP, and each other counsel for the Seller, reliance letters
with respect to each Opinion of Counsel required to be delivered to either
Standard & Poor's or Moody's in connection with each transfer to the Trust
of Subsequent Receivables.
The Seller will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Seller will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Seller will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the Seller
by any Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below; and provided, further, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit
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<PAGE>
of any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased the Notes concerned, to the extent that the
untrue statement or omission or alleged untrue statement or omission was
eliminated or remedied in the Prospectus, which Prospectus was required to be
delivered by such Underwriter under the Act to such person and was not so
delivered if the Seller had previously furnished copies thereof to such
Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Seller against any losses, claims, damages or liabilities to which
the Seller may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Seller by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Seller in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the figures on the cover page concerning the terms
of the offering by the Underwriters, the concession and reallowance figures
appearing under the caption "Underwriting" and the information contained in the
fifth paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party if indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
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<PAGE>
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Seller on the
one hand and the Underwriters on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Seller on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Seller on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Notes (before deducting expenses) received by the
Seller bear to the total underwriting discounts and commissions received by the
Underwriters in respect of the Notes. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Seller or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount under
this Agreement and under the Note Indemnification Agreement in excess of the
amount by which the underwriting discount or commission allocable to the Notes
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be in addition
to any liability which the Seller may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Seller, to each officer of the Seller who
has signed the Registration Statement and to each person, if any, who controls
the Seller within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Notes hereunder on the Closing Date and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to
26
<PAGE>
purchase on the Closing Date, the Representative may make arrangements
satisfactory to the Seller for the purchase of such Notes by other persons,
including any of the Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Notes that
such defaulting Underwriters agreed but failed to purchase on the Closing Date.
If any Underwriter or Underwriters so default and the aggregate principal amount
of Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on the Closing Date and arrangements satisfactory to the Representative and the
Seller for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Seller except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter or the Seller or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the Notes by the Underwriters is not
consummated, the Seller shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Seller and the Underwriters pursuant to Section 7 shall remain in effect, and if
any Notes have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (ii), (iii) or (iv)
of Section 6(c), the Seller will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative at 388 Greenwich Street, New York, New York 10013, Attention:
General Counsel, or, if sent to the Seller, will be mailed, delivered or sent by
facsimile and confirmed to it at P.O. Box 6038, Cypress, California 90630-5205,
Attention: Secretary/Treasurer, Telecopy: (714) 236-1300; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the date
which is one year and one day after the payment in full of all securities issued
by the Seller or by a trust for which the Seller was the depositor which
securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
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<PAGE>
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) The Seller hereby submits to the nonexclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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<PAGE>
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Seller one of the
counterparts hereof, whereupon it will become a binding agreement between the
Seller and the several Underwriters in accordance with its terms.
Very truly yours,
MMCA AUTO RECEIVABLES TRUST
By: ________________________________
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
SALOMON SMITH BARNEY INC.
By: ____________________________________
Name:
Title:
Acting on behalf of itself and as the
Representative of the several Underwriters.
<PAGE>
SCHEDULE A
<TABLE>
Underwriter Amount of Amount of Amount of Amount of Amount of
----------- Class A-1 Class A-2 Class A-3 Class A-4 Class B
Notes Notes Notes Notes Notes
------------------ ------------------ ------------------ ------------------ ---------------
<S> <C> <C> <C> <C> <C>
Salomon Smith Barney Inc. $ $ $ $ $
------------------ ------------------ ------------------ ------------------ ---------------
Total $ $ $ $ $
================== ================== ================== ================== ===============
</TABLE>
